Criminalizing China

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See all articles by Margaret K. Lewis

Margaret K. Lewis

Seton Hall University - School of Law

Date Written: May 13, 2020

Abstract

The Department of Justice launched the China Initiative in November 2018 to counter national security threats emanating from the People’s Republic of China (PRC). By February 2020, the Federal Bureau of Investigation had approximately a thousand active investigations under the Initiative. The China Initiative is gaining momentum.

People and entities who have connections to the governing party-state structure of the PRC have engaged in trade secret theft and other activities that are criminal under U.S. law. The Department of Justice is not making up that there is a threat. It is, however, framing that threat in a way that is problematic.

This Article argues that using “China” as the glue connecting cases under the Initiative’s umbrella creates an overinclusive conception of the threat and attaches a criminal taint to entities that have an even tangential nexus to “China.” It further contends that implying part of the justification for prosecution and resulting punishment is a shared connection to China is worrisome when assessed in light of the goals of deterrence, incapacitation, rehabilitation, and retribution. A better path is to discard the “China Initiative” framing, focus on cases’ individual characteristics, and enhance the Department of Justice’s interactions with non-governmental experts.

Keywords: China Initiative, People's Republic of China, Criminal Law, Department of Justice

Suggested Citation

Lewis, Margaret K., Criminalizing China (May 13, 2020). Journal of Criminal Law and Criminology, Vol. 111, No. 1, 2020. Available at SSRN: https://ssrn.com/abstract=

Margaret K. Lewis (Contact Author)

Seton Hall University - School of Law ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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